Also known as: privilege defences · privilege as defense · qualified privilege · absolute privilege
Written by attorneys · grounded in primary & secondary sources — see below
An affirmative defense providing that if two persons would otherwise be liable for a harm, one of them is not relieved from liability by the fact that the other has an absolute privilege to act or an immunity from liability to the person harmed.
Prime Logistics and its driver Parker Phillips both contributed to a collision that injured a pedestrian. The driver enjoyed an absolute privilege to operate the vehicle under emergency dispatch rules, yet Prime Logistics remained fully liable because its separate negligent maintenance of the truck was a legal cause of the harm. The court held that the driver's privilege did not shield the company from its own tortious conduct.
Senator Patricia Patel and her legislative aide both contributed to a floor speech accusing a researcher of wasting public funds. The aide enjoyed an absolute privilege under the speech or debate clause, yet the Senator remained fully liable because her separate approval of the remarks was a legal cause of the harm. The court held that the aide's privilege did not shield the Senator from her own tortious conduct.
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Former President Patrick Phan and a senior aide both contributed to the dismissal of a defense contractor employee who had testified before Congress. The aide enjoyed absolute immunity for acts within the outer perimeter of official duties, yet the former President remained fully liable because his separate order was a legal cause of the harm. The court held that the aide's immunity did not shield the President from his own tortious conduct.
Prosecutor Pierce Patterson and an investigator both contributed to the knowing use of false testimony to secure a conviction. The investigator enjoyed absolute immunity for actions intimately associated with the judicial phase, yet the prosecutor remained fully liable because his separate decision to present the testimony was a legal cause of the harm. The court held that the investigator's immunity did not shield the prosecutor from his own tortious conduct.
Pulse Media and its editor both contributed to an advertisement criticizing police conduct during a protest. The editor enjoyed a conditional privilege absent actual malice, yet the publisher remained fully liable because its separate approval of the copy was a legal cause of the harm. The court held that the editor's privilege did not shield the publisher from its own tortious conduct.
Dun & Bradstreet and its analyst both contributed to a credit report falsely stating that Portia Price's construction firm had filed for bankruptcy. The analyst enjoyed a conditional privilege absent negligence on matters of private concern, yet the company remained fully liable because its separate publication decision was a legal cause of the harm. The court held that the analyst's privilege did not shield the company from its own tortious conduct.
No. Under the governing rule, if two persons would otherwise be liable for a harm, one is not relieved from liability merely because the other enjoys an absolute privilege or immunity. The privilege of one actor does not extend to the other.
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Absolute immunity protects the President for acts within the outer perimeter of official responsibility. The defense bars civil suits even when the conduct would otherwise be actionable, provided the act is not manifestly beyond the scope of executive authority.
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The plaintiff must prove actual malice with convincing clarity. The privilege protects criticism of official conduct unless the defendant knew the statement was false or acted with reckless disregard of its truth.
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…to forestall criticism of their official conduct. The conclusion that the Constitution affords the citizen and the press an absolute privilege for criticism of official conduct does not leave the public official without defenses against unsubstantiated opinions or deliberate misstatements. "Under our system of government,…